Watchdog Squares Off on Trump’s Invisible Ink

In this July 24, 2017, photo, President Donald Trump speaks about health care in the Blue Room of the White House in Washington. (AP Photo/Alex Brandon, File)

WASHINGTON (CN) – An attorney for the government rebelled Wednesday against court allegations that President Donald Trump is destroying records in violation of a law inspired by the Watergate scandal.

Calling the issue a matter of jurisdiction, Justice Department attorney Steven Meyers said court oversight would “substantially upset” Trump’s presidential control over his records, interfering with his ability to execute the office of the presidency.

Citizens for Responsibility and Ethics in Washington and the National Security Archive brought the underlying challenge last year in response to press reports that White House staff were using encrypted messaging applications Signal and Confide so that their communications could not be preserved.

George Clarke III, an attorney for the watchdogs with the firm Baker & McKenzie, argued in the nearly hour-long hearing Wednesday that the use of these apps is designed to frustrate the Presidential Records Act.

Adopted in 1978, the law makes presidential and vice presidential records created after Jan. 20, 1981, public rather than private. Lawmakers crafted the legislation during the Watergate investigation when President Richard Nixon refused to hand over White House files and tapes.

Though the law requires presidents and vice presidents to actively classify records as personal or presidential, attorney Clarke said the applications that Trump staffers have embraced cause messages to self-destruct as soon as they are read.

“That’s what these apps do,” Clarke said. “They prevent that determination from even being made.”

Anne Weismann, an in-house attorney for Citizens for Responsibility and Ethics in Washington, argued Wednesday that the court absolutely has the power to require the president to perform his ministerial duties required by the law.

Since the messages at issue never come into existence as records in the first place, Weissman said judicial review is not precluded.

“Messages are destroyed without regard to content,” she said.

Weissman also warned that throwing out her client’s challenge would weaken the law.

“If this court found there is no judicial review here, then I think the president and White House would be granted license to ignore all Presidential Records Act obligations,” Weismann said.

The watchdogs are also challenging President Trump’s use of executive orders, which they say violates the take-care clause of the Constitution by transforming into presidential records what would otherwise become federal agency records, allowing them to be cloaked in secrecy. This in turn, the watchdogs allege, allows the Trump administration to evade accountability and transparency under the Freedom of Information Act, the Federal Records Act and the Administrative Procedure Act.

U.S. District Judge Christopher Cooper pressed attorney Clarke on this point during the hearing.

“Isn’t the presidential decision to proceed by executive order a discretionary one,” Cooper asked.

Clarke said the case should to to discovery for further exploration of whether Trump is unlawfully thwarting the public’s ability to access records on executive orders.

Driving his point home, Clarke pointed to comments attributed in media reports to former White House chief strategist Steve Bannon, suggesting that he intentionally sought to prevent a paper trail for the administration.

Attorney Myers meanwhile argued that the Freedom of Information Act, the Federal Records Act and the Administrative Procedure Act do not prohibit the president’s alleged behavior.

Cooper said he would issue a ruling in “due course” after concluding that the arguments were “very interesting.”

After the hearing, attorney Clarke said in a brief interview that he felt like the judge had prepared well and understood the arguments.

“Regardless of how it gets resolved we’re very happy about the reception and the fact that he’s obviously read everything and understands what’s happening. So that’s, that’s key,” he said. “That’s all you can ask for.”

The Department of Justice did not respond to an email seeking comment on the lawsuit.